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The Leak Police

In the months leading up to the invasion of Iraq in 2003, this newspaper famously published a number of stories regurgitating the Bush administration hype about Saddam Hussein’s supposed arsenal of mass destruction. A few journalists elsewhere — notably Jonathan Landay and Warren Strobel, then of the Knight Ridder newspapers — dug deeper, discovered contrary intelligence, and challenged the official line. Later, The Times also published some excellent work on how an administration eager to justify its decision to go to war cherry-picked the intelligence to make its case.

The Times has owned up to — and, we pray, learned from — the things we got wrong. But this is a good time to look a little harder at the journalists who got it right. How did they come up with the evidence to refute the version embraced by the president, by most officials in both parties and by a lot of the mainstream media?

They got it from government officials with access to classified information, who risked their jobs to confide the truth to journalists. Critics call these “leaks,” although such stories hardly ever spill out unbidden; they are painstakingly assembled by teasing out bits of information, triangulating, correcting, testing, confirming. I’d call them a public service.

Washington is currently going a little nuts on the subject of leaks. The Obama administration, which has, without really setting out to do so, already surpassed all previous administrations in its prosecution of leakers, has begun new investigations into disclosures by The Times, Newsweek, The Associated Press and others. Congress has mandated surveillance systems that make it easier to identify leakers and to prevent unauthorized downloads of classified material.

But that has not quieted the hysteria. Republicans are accusing the F.B.I. of insufficient zeal and demanding a special prosecutor. Democrats, typically worried about being perceived as soft on national security, have tried to out-deplore the Republicans. Senator Dianne Feinstein introduced a bill the other day that, among other things, would forbid background briefings on intelligence matters by anyone except an agency’s director, deputy director or public-affairs spin doctors — thus cutting out the officers with firsthand knowledge and silencing those who question the party line. It should be dubbed the Keep Americans in the Dark Act. Feinstein already seems to be backpedaling a bit, after discovering that top intelligence officials think elements of her bill are ridiculous. (For one thing, it applies only to the spy agencies and does not touch the places that routinely consume classified intelligence material — the White House, the State Department, the Defense Department, allied foreign governments or, perhaps the leakiest vessel in Washington, Congress itself.)

Is this latest outbreak of leak panic just another mood swing? Or is something else going on?

There is a plausible case that more secrets are spilling these days. In part that is because so much material is automatically, needlessly classified that officials tend not to take classification as seriously. I suspect another factor is the enthusiasm with which senior officials contribute their notes and self-serving recollections for behind-the-scenes books, setting a permissive example for those farther down the official ladder. (The top officials thus assure their place in history; it’s the juniors who get prosecuted.)

Some of the current wailing is just politics as usual, or what has become usual in the pit bull arena of the modern campaign. Mitt Romney, desperate for a way to turn President Obama’s takedown of Osama bin Laden into a liability, has professed to be shocked and outraged that a president or his circle might use classified information to burnish the image of the commander in chief. The Republican nominee-to-be points to stories about Obama’s handling of the Bin Laden raid, his oversight of a terrorist kill list and the administration’s cyberattacks on Iran as “contemptible” breaches of national security.

Romney certainly knows something about keeping secrets; there have been no leaks so far of his tax returns, the names of his big-money bundlers, the records of his work as governor and Olympics czar or, for that matter, his economic plan.

“Presidents make ‘secret’ decisions only to reveal them for the purposes of frightening an adversary nation, wooing a friendly electorate, protecting their reputations. The military services conduct ‘secret’ research in weaponry only to reveal it for the purpose of enhancing their budgets, appearing superior or inferior to a foreign army, gaining the vote of a congressman or the favor of a contractor. The Navy uses secret information to run down the weaponry of the Air Force. The Army passes on secret information to prove its superiority to the Marine Corps. High officials of the government reveal secrets in the search for support of their policies, or to help sabotage the plans and policies of rival departments. Middle-rank officials of government reveal secrets so as to attract the attention of their superiors or to lobby against the orders of those superiors.”

Photo

Bill KellerCredit
Tony Cenicola/The New York Times

That was Max Frankel, then the Washington bureau chief of The New York Times, in a 1971 deposition defending the paper’s publication of the secret Vietnam War history called the Pentagon Papers. Frankel acknowledged the self-serving nature of these transactions — on both sides — but concluded that this “cooperative, competitive, antagonistic and arcane relationship,” as he called it, was essential to the working of democracy. Without this trafficking in secrets, he said, “there could be no adequate diplomatic, military and political reporting of the kind our people take for granted, either abroad or in Washington, and there could be no mature system of communication between the government and the people.”

I’m prepared to believe that unauthorized disclosure to the press of classified information has occasionally had dire consequences, though clear-cut examples of that are scarce. More often, what “leaks” have done is inform Americans about what is being done in their name — the good (successful targeting of militants, cyberdisruption of Iran’s nuclear program) and the not so good (warrantless eavesdropping, torture). Raise a hand if you’d really prefer not to know those things.

Some of the instances that seem at first glance to be irresponsible breaches of security turn out, on closer study, to be something else. Recently, The Times, along with several other news organizations, disclosed that the United States had successfully planted a double agent in Al Qaeda in Yemen, and managed thereby to thwart the suicide bombing of an airliner. Outing a double agent is a death warrant. But in this case, reporters who worked the story sought and received assurances that the agent had finished his work and moved to safety. The Qaeda double-agent revelations may well have been good for American security: sowing some corrosive mistrust among the fanatics, and creating a potential hero for young Muslims disenchanted with jihad.

Over the decades, rival interests — the government’s legitimate responsibility to keep some things secret, the press’s constitutional freedom to ferret out information and report it — have coexisted through informal understandings. The government worked to protect secrets at the source but generally accepted that it had little recourse once they had escaped. Violators were reprimanded, but hardly ever charged under the Espionage Act. Reporters and editors were sometimes persuaded to withhold information if they were convinced it could put lives at risk.

Alexander Bickel, who was the chief counsel for The Times in the Pentagon Papers case, wrote that this accommodation “works well only when there is forbearance and continence on both sides. It threatens to break down when the adversaries turn into enemies, when they break diplomatic relations with each other, gird for and wage war. Such conditions threaten graver breakdowns yet, eroding the popular trust and confidence in both government and the press on which effective exercise of the function of both depends.”

Bickel’s argument, in a seminal book of legal philosophy called “The Morality of Consent,” assumes a respectful — if adversarial — relationship between, on one side, an establishment press and, on the other, a government that accepts the value of compromise in the conduct of public affairs. It’s arguable whether we have either of those today.

The notion of an establishment press is, to say the least, under siege. News comes from a dizzying number of directions. We know from the WikiLeaks case that among the legions of Internet aggregators and disseminators are at least a few who would feel no compunction about disclosing life-threatening information if they got their hands on it.

So far, though, the secrets that set Washington on edge still tend to come from reporters who have spent years developing relationships with sources, mainstream reporters like Landay and Strobel, or like David Sanger of The Times and Daniel Klaidman of Newsweek, who are prominent among the current targets of the leak police. They operate without security clearances or subpoena powers. They work, rather, with sources who may be scared, who probably know only part of the story, who may have their own agendas that need to be discovered and taken into account. Reporting secret information with confidence usually entails a multitude of sources, ideally backed by documentary evidence.

So, while the mainstream press might not enjoy the hegemony it held before the Internet, most of what the country knows about the secret activities of its government it knows thanks to news organizations that still take their responsibilities seriously: reporters who check to make sure that the double agent is safe before they publish the story. (WikiLeaks, which has built a reputation on one tremendous leak, is still the exception that proves the rule.)

Unfortunately, these are not days of — in Bickel’s phrase — “forbearance and continence.” We live in a time of zero-sum politics, where trust is scarce and compromise is perilous, and where the hamster-wheel news cycle puts no special value on reflection.

In a saner Washington, a reasonable effort to control truly harmful leaks might be balanced by an equally serious effort to roll back excessive classification, so that we could have a more informed debate about drones and cyberwarfare and kill lists. In that Washington, we could worry a little less about where the stories came from, and a little more about what’s in them.